A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Tuesday, November 22, 2011

The City of Toronto is Mobilizing for Another Labour Battle

David Miller fought the union in 2009, with the result of a lengthy strike that showed Toronto just how much labour action can stink. Since then, we've gotten an anti-labour Federal majority government in place which feels it can step on the labour movement with impunity, a Toronto mayor who is about as tactful as a grizzly bear when it comes to labour policy, and our middle-of-the-road Provincial government has lost its majority government.

Right now, there's a clear public sentiment that permits and encourages governments to "take on" the unions. At the same time, the law has been shifting the other way, and may continue to do so in response to extreme anti-labour government action.

All that being said, when it comes to labour policy, McGuinty can still govern almost as if he had a majority. He only needs a couple opposition votes to pass a bill, and anything pro-labour will easily garner NDP support while anything anti-labour will easily garner PC support. (The only risks lie in "middle-of-the-road" legislation that neither the right nor the left can back.) McGuinty has made it fairly clear that he is not prepared to intervene in labour actions on the same sweeping pre-emptive basis as Harper has been doing in the Federal sphere.

So now Rob Ford is mustering his troops for another battle against the union, according to this Toronto Star story. Reportedly, the Ford administration has been recruiting temporary replacement workers to fill in for unionized workers during a strike or lockout. The closest thing to a denial that the Ford administration has issued is a statement by the Deputy Mayor that Ford has not "personally" interviewed anybody. (Which is a pretty weak denial, when you think about it.)

Ordinarily, unions pick the timing of strikes, and they pick them to generate the maximum hardship to the employer. The lockout is a tool in the employer's arsenal to take some control of the situation, to force an inevitable interruption on terms more favourable to itself. (For example, the recent Canada Post dispute was characterized by the union commencing 'rolling' strikes, with random temporary interruptions across the country, meaning that the actual bargaining unit members weren't put to great hardship while significantly interfering with the employer's operations. Canada Post responded with a complete lockout.)

Temporary replacement workers are somewhat controversial, called "scabs" by those in the labour movement. Historically, they were the subject of significant harassment and even violence when trying to cross the picket lines. We'd like to think that we've moved beyond that, that these kinds of violent labour disputes are a relic of the 1930's, but picketing still tends to stir up a mob mentality. In fact, in 1992 nine replacement workers were murdered in Giant Mine in Yellowknife when a member of the striking bargaining unit caused an explosion in the mine.

The labour movement doesn't like replacement workers because they *really* undermine the bargaining power of the union. The employer is able to bring in more people (other than managers) to do bargaining unit work. They're currently legal in Ontario, and have been since Harris was elected in 1995, but you still occasionally see an NDP private member's bill trying to prohibit them.

And really, they make sense as a bargaining tool. If temporary replacement workers are a cost-effective way of the employer carrying on its business, then maybe we should question the value added of the experienced bargaining unit members. Real bargaining power comes from being difficult to replace. To have legislation that prohibits the employer from replacing you is an artificial inflation of bargaining power, and let's face it: In most bargaining scenarios, the unions do not need inflated bargaining power.

Still, Ford's approach takes it to a new level. Usually, you bring in temporary replacement workers in response to a work interruption. To have a bank of temporary workers lined up in case of an interruption...well, he's preparing for a lengthy siege. It's provocative, and it suggests that the City is going to enter negotiations with the intention of crushing the union. Ford's objective is to not need the unionized workers, and if he pulls it off to any degree at all, there is going to be a lot of strife on the picket lines. It won't be a pretty picture.

If this does turn into a labour dispute, then for once the far right will certainly not be calling on McGuinty to enact 'back-to-work' legislation.

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